Estate of Toy

OPINION

N.A. Sapunar appeals from a judgment denying him a commission on the sale of real property by respondents as executors of the will of Bertha C. Toy, deceased. Respondents had returned to the court a private sale to another party. At the hearing, appellant bid $1,203,107, a sum at least 10 percent more than that stated in the return of sale. The court confirmed a sale to appellant and awarded a commission of $25,000 to Coldwell Banker Company, the broker who had acted for the executors in obtaining the first bid.

Appellant moved to vacate the order and for an evidentiary hearing, contending that a broker's commission should have been awarded to him. The court in effect granted the motion to vacate: the court conducted an evidentiary hearing, made findings, and rendered judgment denying the relief sought by appellant.

In late 1974 or early 1975, appellant and many other real estate brokers received in the mail a flyer from the respondent executors, *Page 394 announcing that there would be a private sale of San Francisco realty belonging to the estate. At the private sale appellant's bid, in his own name, was highest. It was rejected because it contained unsatisfactory conditions and was not in proper form. The bid of respondent Coldwell Banker ($1,050,101), in the name of its client, was accepted.

When the sale came on for confirmation by the court (Prob. Code, § 755), appellant announced that he would make a higher offer "subject to the usual real estate commission." After the bidding was completed and the court had announced a sale to appellant at a price of $1,203,107, the court declared: "This man is buying for himself. There is no real estate commission there."

Appellant informed the court that it was his understanding that a commission should be allowed. The court asked if he wished to withdraw the bid. Appellant did not withdraw the bid; he replied that he would like to change the name on the bid, that he was buying "for someone else." The court did not reply, and the hearing ended.

Appellant paid the deposit that day and later completed the sale, but has not received a commission.

(1) Appellant contends that as a matter of law a broker who purchases for himself is entitled to a commission upon confirmation of a probate sale. This contention cannot be sustained. Probate Code section 7611 provides that, when a sale is made on an increased bid, one-half of the commission is to be paid to "the agent, if any, who procured the purchaser to whom the sale is confirmed." This provision contemplates compensation for services which produce a successful bid, not an automatic discount for any purchaser who happens to be a licensed broker. Thus, in Batson v. Strehlow (1968) 68 Cal.2d 662, 671 [68 Cal.Rptr. 589, 441 P.2d 101], the Supreme Court broadly indicated that compensation can be paid by an estate to a broker "only in his capacity as an agent or broker." A broker who bids in his own behalf is not acting in such a capacity, and is not entitled to a commission. *Page 395